Prosecutors who bring criminal cases without adequate justification may be sued for doing so, and may not be protected by prosecutorial immunity if the prosecutors' actions were egregious enough.

Malicious prosecution refers to a criminal or civil case that is filed without an adequate basis and for an improper purpose, such as harassing the defendant, ruining another person’s reputation, or to knowingly place blame on someone other than the actual wrongdoer. If a prosecutor files such a case and the charges are dismissed, the defendant can sue for malicious prosecution and seek financial damages. The law that allows a malicious prosecution suit is aimed at preventing and addressing abuse of the legal process.

An Example of Malicious Prosecution in a Criminal Case

A county prosecutor runs for mayor and loses the election. He believes that a local businessman who is active in politics played a large role in sabotaging his campaign. The prosecutor becomes obsessed with the idea that the businessman caused him to lose the election. When some questions come up about the businessman mixing business and politics, the prosecutor grabs the opportunity to accuse and charge the man with attempting to bribe public officials. The prosecutor takes the lead role in the case and eventually the man’s attorneys are able to expose the fact that there was no evidence to support the charges and that the case was nothing but a vendetta. The charges are dismissed but only after several months of investigation and numerous hearings before the criminal court judge. The businessman pays thousands of dollars to his attorneys and his business loses money.

The businessman can file a law suit for malicious prosecution against the prosecutor. The businessman can claim that the prosecutor abused the legal process and abused his authority as a prosecutor. The businessman can ask for payment for damages he suffered as a result of the criminal case, such as being held in jail for several days, the cost of defending against the charges, lost business due to missed work, and damage to his reputation in the community.

Proving a Malicious Prosecution Case

The businessman must prove four elements in order to win his malicious prosecution case:

the original case (involving criminal charges) was resolved in the businessman’s favor

the prosecutor was actively involved in the original case

the prosecutor did not have the probable cause necessary to file the charges, and

the prosecutor initiated or pursued the original case for improper purposes.

Resolved in the defendant’s favor

The businessman must prove that the criminal case ended in his favor. He can prove this element of malicious prosecution if he can show that the judge dismissed the charges. In a felony case brought pursuant to an information, if the judge or a jury found the businessman not guilty, it would be harder for him to prove malicious prosecution, because the court had to find probable cause before the case could go to trial. If the businessman accepted a plea deal and pleaded guilty to a lesser charge, prevailing in a malicious prosecution suit would be unlikely.

Active involvement

The person filing a malicious prosecution case must be able to prove that the prosecutor named in the suit was actively involved in the criminal case. The businessman can show that the prosecutor filed the charges, handled the case, and supervised other attorneys working on the case—he can satisfy the "active involvement" element. If the prosecutor had only signed off on an assistant prosecutor’s paperwork and the assistant prosecutor had managed and pursued the case without the lead prosecutor being involved, the businessman would not have been able to prove this element of the case.

Probable cause

In order to file charges against a citizen and pursue a criminal case, a prosecutor must have enough evidence to establish probable cause to believe the defendant committed a crime. A prosecutor has probable cause if there is enough evidence to support a reasonable suspicion that the defendant committed a crime or that the defendant more likely than not committed a crime. At the start of criminal proceedings, a prosecutor does not need to have enough evidence to prove the crime absolutely or beyond a reasonable doubt, but the prosecutor must reasonably believe the defendant is guilty.

If the businessman in the example can show that the prosecutor had no evidence, fabricated evidence, or pursued the case on very weak evidence without conducting a reasonable investigation, he can establish that the prosecutor had no probable cause.

Improper purposes

To prove improper purposes, the person filing a malicious prosecution suit must show that the prosecutor didn’t just make a mistake or get bad information and reasonably rely on that information. In the example above, the businessman must prove that the prosecutor instigated the criminal case because of his anger or with the intent to bring false charges, harass the businessman, or damage his reputation. Without direct evidence of intent, the businessman can argue that the decision to pursue the case without probable cause proves improper purpose (perhaps the businessman can prove the prosecutor knew or should have known the evidence was insufficient).

Prosecutor Immunity

One of the biggest challenges in malicious prosecution cases based on the filing of criminal charges is prosecutor immunity. State and federal laws give prosecutors and other law enforcement employees immunity from liability for malicious prosecution. This immunity is meant to protect prosecutors and law enforcement so they can do their job without constantly having to defend against accusations of malicious prosecution. The concern is that every person who claims innocence might try to sue the prosecutor for wrongful prosecution.

There are, however, limits to this immunity. If the person bringing a malicious prosecution suit can show that the prosecutor acted outside his authority in the process of instigating or pursuing a criminal case, the immunity will not extend to those actions in most jurisdictions. If the businessman can prove, for example, that the prosecutor paid a witness to testify to certain things or created false documents, the prosecutor probably would not have immunity, because those actions would be outside the scope of the prosecutor’s job.

Consult With an Attorney

If you believe a prosecutor has targeted you or has filed criminal charges against you in order to harass you or cause you harm and not because you violated the law, contact an attorney immediately for advice and representation.